Misbehavior before the enemy. UCMJ Art. 99
Organized forces in time of war or any hostile body, including civilians, that may oppose U.S. forces. United States v. Monday , 36 C.M.R. 711 (A.B.R. 1966), pet. denied , 37 C.M.R. 471 (C.M.A. 1969).
Before The Enemy
- A question of tactical relation not of distance. A reasonable possibility of being called into action is sufficient. United States v. Sperland , 5 C.M.R. 89 (C.M.A. 1952).
- Subsequent enemy contact may not be used to establish misconduct before the enemy. United States v. Terry , 36 C.M.R. 756 (N.B.R. 1965), aff’d , 36 C.M.R. 348 (C.M.A. 1966).
Nine Forms of the Offense
- Running away.
- Shamefully abandoning, surrendering, or delivering up command, unit, place, ship or military property.
- Endangering safety.
- Casting away arms or ammunition.
- Cowardly conduct.
- Quitting place of duty to plunder or pillage.
- Causing false alarms.
- Willfully failing to do utmost to encounter the enemy.
- Failure to afford relief and assistance.
Each form has its own set of elements. An example, Article 99(5), is below:
- That the accused committed an act of cowardice;
- That this conduct occurred while the accused was before the enemy; and
- That this conduct was the result of fear.
- Cowardice is misbehavior motivated by fear. Fear is the natural feeling of apprehension when going into battle. United States v. Smith , 7 C.M.R. 73 (C.M.A. 1953).
- The mere display of apprehension does not constitute the offense. United States v.Barnett , 3 C.M.R. 248 (A.B.R. 1951).
- An intent to avoid combat does not in itself justify an inference of fear. United Statesv. Yarborough , 5 C.M.R. 106 (C.M.A. 1952).
- Refusal to proceed against the enemy because of illness is not cowardice unless motivated by fear. United States v. Presley , 40 C.M.R. 186 (C.M.A. 1969).
- Article 99 covers the area of misbehavior before the enemy offenses. Art. 134 is not a catch-all. United States v. Hamilton , 15 C.M.R. 383 (C.M.A. 1954).